In September 2008, the motion picture industry sued RealNetworks over its RealDVD software, which was designed to allow consumers to copy their DVDs to their computers for later playback. Real had obtained a license from DVD-CCA for its software, apparently relying on earlier court rulings in the DVD-CCA v. Kaleidescape case, where a California state court ruled that Kaleidescape's licensed digital DVD jukebox was within the scope of the DVD-CCA license.

On September 30, 2008, the day Real was to formally launch its RealDVD product, the motion picture studios filed a lawsuit in Los Angeles and asked for a temporary restraining order (TRO) to block the launch. The same day, RealNetworks filed a lawsuit in San Francisco asking the court to declare that distribution of RealDVD is lawful. The court in Los Angeles subsequently transfered the case to San Francisco, where it is pending before Judge Patel, who ordered a temporary halt to distribution of RealDVD until a further hearing in late November 2008.

In Arista v. Lime Wire, the recording industry plaintiffs seek to hold Lime Wire liable for acts of copyright infringement by users of its software. The case is among the first to apply the inducement doctrine announced by the Supreme Court in MGM v. Grokster in 2005.

EFF and a coalition of industry and public interest groups filed an amicus brief urging the court to apply the law in a manner that will not chill technological innovation and to reaffirm that developers should not be held liable for copyright infringement based on misuses of their technology that they did not actively promote. In particular, the brief urges the court to preserve the Sony Betamax doctrine, which protects developers of technologies capable of substantial noninfringing uses from contributory infringement liability based on the activities of end-users. EFF was joined on the amicus brief by the Center for Democracy and Technology, the Computer and Communications Industry Association, the Consumer Electronics Association, the Home Recording Rights Coalition, the Information Technology Association of America, Public Knowledge, the Special Libraries Association, and the U.S. Internet Industry Association.

At issue in this case was whether three software programmers who created the BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA).

BnetD was an open source program that let gamers play popular Blizzard titles like Warcraft with other gamers on servers that don't belong to Blizzard's Battle.net service. Blizzard argued that the programmers who wrote BnetD violated the DMCA's anti-circumvention provisions and that the programmers also violated several parts of Blizzard's EULA, including a section on reverse engineering.

The Electronic Frontier Foundation (EFF) and the firm of Day Casebeer Madrid & Batchelder served as counsel for defendants, arguing that programmers should be allowed to create free software designed to work with commercial products because it benefited consumers and helped promote innovation. The 8th Circuit Court of Appeals disagreed, holding that reverse engineering and emulating the Blizzard software were illegal.

Outcome: The reverse engineering and emulating of the Blizzard software violated the anticircumvention provisions of the DMCA. This ruling has been widely criticized as making it impossible to create new programs that interoperate with older ones and squeezing consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own.

In re Aimster case description.

Most people assume that consumers have a fair use right to time shift television to watch at a later time. As a result, lots of companies now sell digital video recorders (DVRs) that enable you to do this, including TiVo, and it's generally accepted that selling DVRs is perfectly legal (of course, the movie studios still don't like it, as demonstrated by their lawsuit against ReplayTV). Should the answer be any different if a cable company gives subscribers the ability to record programs to a remote server, rather than to a hard drive sitting in the DVR in their living room?

While the studios and networks certainly wanted the answer to be "yes," thankfully the Second Circuit Court of Appeals followed common sense and said "no." That's a very good thing, because if the content industry had been right, then lots of remote computing services could have been in serious legal jeopardy. What if someone uses Amazon's EC2 service to commit copyright infringement? Would Amazon have been automatically liable, even if they had no idea? What about Google Apps? What about drugstore photo printing kiosks? These are all examples of the kinds of tools that consumers can now remotely control in order to make copies. It makes no sense that the service providers who provide these remote tools should be discriminated against by copyright law. That's what we told the Second Circuit in our appellate brief, and that's what the Second Circuit concluded.

Background:

In March 2006, Cablevision announced its intention to deploy a "remote DVR" to its subscribers. Rather than recording cable programming on hard drives contained inside a "set-top DVR" located in the subscriber's home (which is the typical solution offered by both TiVo and cable-company provided DVRs), Cablevision would allow the subscriber to record the program on hard drives maintained in Cablevision's own central offices. To the subscriber, the remote DVR would work just like the traditional set-top DVR -- the subscriber would choose what to record, when to watch, and when to delete programs.

The motion picture and television industries responded by suing Cablevision for copyright infringement. Although the Supreme Court in its famous "Betamax" decision had ruled that time-shifting by consumers was a noninfringing fair use, the plaintiff argued that Cablevision, not its subscribers, were making the copies. Therefore, argued the plaintiffs, Cablevision was a direct infringer of copyright, not able to rely on the same defenses that Sony used to defend its Betamax VCR before the Supreme Court.

On March 22, 2007, the district court in New York agreed with the plaintiffs and found that Cablevision would itself directly infringe copyrights if it launched the remote DVR service. Cablevision appealed to the Second Circuit Court of Appeals. EFF joined a host of other public interest and industry groups in supporting Cablevision in the appeal.

On August 4, 2008, the appellate court sided with Cablevision, EFF and our co-amici, reversing the district court's decision. The court held that (1) fleeting buffer copies (lasting less than 1.2 seconds) were not "fixed" sufficiently and thus not "copies" under the Copyright Act; (2) the consumers who press record are the ones who are making copies, not Cablevision; and (3) the playback of those copies (each of which was recorded separately for each consumer, even if thousands of consumers separately chose to record the same show) was not a public performance, since each copy could be played only by the consumer who recorded it.

Adult entertainment publisher Perfect 10 sued Google's Image Search service, arguing that Google violates copyright law by indexing Perfect 10 photos posted on unauthorized websites, then making and delivering thumbnail images of those photos in its search results. Perfect 10 also contends that Google should be held liable for any copyright infringement that occurs on sites that Google links to.

In February 2006, the district court ruled in favor of Google on several grounds, but ruled against Google for its creation of thumbnails. EFF filed an amicus brief for itself and several library associations, supporting Google.

Both sides subsequently appealed, and EFF filed an amicus brief on behalf of itself and library associations supporting Google. On May 16, 2007, the Ninth Circuit Court of Appeals handed Internet innovators and users of all stripes a major victory in Perfect 10 v. Google (the opinion was subsequently amended on December 3, 2007). While it leaves some questions open, the bottom line is that the Court upheld important policies of fair use and freedom online and resisted Perfect 10's plea to put copyright owners completely in charge of how and when search engines and other online intermediaries can provide their users with links to images.

For a more complete description of the court of appeals ruling, take a look at our Deep Link regarding the decision.

After the appeal, the case was remanded back to the district court to decide whether Google is liable for contributory infringement. The case remains pending as of August 2008.

In 2005, Macrovision sued Sima to block the sale of the Sima CopyThis! (CT-1, CT-Q1, CT-100, CT-2, CT-200) and GoDVD (SCC, and SCC-2) products, which are designed to digitize analog video, such as the analog video outputs of DVD players and analog VCRs. The Macrovision Analog Copy Protection (ACP) signals often embedded in these analog outputs, however, do not survive the digitizing process, and therefore are not embedded in the outputs of the Sima devices. Macrovision argued that this violates both Macrovision's patents and the DMCA's prohibition on circumvention.

In April 2006, the district court agreed with Macrovision and issued a preliminary injunction against Sima. The court amended and refined its ruling in May 2006. Sima appealed the ruling.

In the appeal, EFF joined the CEA, HRRC, library associations, and CCIA in filing an amicus brief on behalf of Sima arguing that digital devices that ignore and remove Macrovision signals do not violate the DMCA, both because Macrovision's ACP technologies do not qualify for protection under the DMCA and because Sima's devices do not "circumvent" within the meaning of the DMCA.

Unfortunately, Sima and Macrovision settled their dispute before the appeal could be decided, leaving for another day the important question of whether Macrovision's analog signals qualify for DMCA protection.

In this case, EFF helped convince the U.S. Supreme Court to invalidate a dangerous patent law precedent that threatened free speech and consumers' rights.

The court unanimously held that issuing automatic injunctions in patent cases improperly removed discretion from trial judges to weigh competing factors, including the effect that enforcing the patent would have on the public interest. This follows the reasoning outlined in a friend-of-the-court brief filed by the Electronic Frontier Foundation (EFF), which urged the justices to overrule the lower court and protect the public interest in free speech, innovation, and education.

The lower court's ruling stemmed in part from a misperception that patents are just like other forms of property, with the same rights and remedies. However, Supreme Court rulings have repeatedly emphasized that patents are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress. Additionally, the concurrence written by Justice Anthony Kennedy and joined by Justices David Souter, John Paul Stevens, and Stephen Breyer noted that the current patent system may be suffering ill effects from business method patents and so-called "patent troll" companies.

"An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees," Justice Kennedy wrote. "In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods ? the potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test."